ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTRE, KERALA

Code of civil procedure

G.C.T- 1
Topic- “Powers and Duties of Appellate
Court”.

Submitted to, Submitted by,

Mr.Aliniyas V. Kunjali Singh
Assistant Professor GK7931
Department of law 18BALLB34
Topic Page no.
Introduction

Powers of appellate court

A. Power to finally determine a case

B. Power to remand a case

C. Power to frame issues and refer them to

trial

D. To summon witnesses

E. To obtain additional evidence

F. To reverse the order

Duties of appellate court

A. Duty to decide appeal finally

B. Duty not to interfere with decree for

technical errors

C. Duty not to reappreciate

evidence

D. Duty to record reasons

INTRODUCTION
CPC gives wide powers to an appellate while deciding the case.The power of appellate courts is
given in section 107 of the code which says that subject to the limitations provided, an appellate
court has to power to – 1. To finally determine a case.

2. To remand a case.

3. To frame issues and refer them to trial.

4. To summon witnesses.

5. To obtain additional evidence or order such evidence to be taken.

6. To reverse the decree of the lower court if it is not justified.

This section further goes on to state that the appellate courts shall have the same powers and
shall perform their duties as nearly in the same procedure as has been laid down by this code for
courts of original jurisdiction.

Now let’s discuss these powers in detail

A. POWER TO DECIDE A CASE FINALLY

Section 107 (1) (a) and Rule 24 of Order 41 enables the Appellate court to decide the case
finally. Rule 24 states that where the evidence upon the record is sufficient to enable the
Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if
necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose
decree the appeal is preferred has proceeded wholly upon some ground other than that on which
Appellate Court proceeds. The general rule is that a case should, as far as possible, be disposed
of on the evidence on record and should not be remanded for fresh evidence, except in rare
cases.1

B. POWER TO REMAND

Remand means to send back. Rules 23 and 23A of Order 41 and section 107 (1) (b) deal with the
power to remand of the appellate court.

By passing an order of remand, an appellate court directs the lower court to reopen and retry the
case. On remand, the trial court will remit the suit under its original number in the register of
civil suits and will proceed to determine it as per the directions issued by the appellate court.2

An order of remand reverses the decision of the lower court and reopens the case for retrial by
the lower court except in regard to the matters decided by the appellate court. An order for
remand is appealable.3 If the party aggrieved by an order for remand does not appeal therefrom,
he cannot subsequently question its correctness under the inherent powers of the court u/s 151 of
the Code.

Rule 26A of the said order further states that where the Appellate Court remands a case under
rule 23 or rule 23A, or frames issues and refers them for trial under rule 25, it shall fix a date for
the appearance of the parties before the Court from whose decree the appeal was preferred for
the purpose of receiving the directions of that Court as to further proceedings in the suit. After
the order of remand, the trial court has to decide the matter as per the directions of the court.

A case can be remanded back if the following conditions are satisfied:

i) The suit must have been disposed of by the trial court on a preliminary point

Rule 23 states that where the Court from whose decree an appeal is preferred has disposed of the
suit upon a preliminary point and the decree is reversed in appeal, the Appellate Court may, if it

1 Sunder Singh v. Narain Singh, 1969 SCD 900.

2 C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh edition, 2013, p. 509
3
O. 43 R. 1(u)
thinks fit, by order remand the case, and may further direct what issue or issues shall be tried in
the case so remanded, and shall send a copy of its judgment and order to the Court from whose
decree the appeal is preferred, which directions to re-admit the suit under its original number in
the register of civil suits, and proceed to determine the suit; and the evidence (if any) recorded
during the original trial shall, subject to all just exceptions, be evidence during the trial after
remand.

A point can be said to be a preliminary point, if it is such that the decision thereon in a particular
way is sufficient to dispose of the whole suit, without the necessity for a decision on the other
points in the case.3Such preliminary point may be one of fact or of law, but the decision must
have avoided the necessity for a full hearing of the suit.

ii) The decree under appeal must have been reversed

No remand can be ordered under Rule 23 unless the decision of the lower court on the
preliminary point is reversed in appeal. )

iii) Other grounds

Rule 23A, as inserted by amendment in 1976, states that where the Court from whose decree an
appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree
is reversed in appeal and a retrial is considered necessary, the Appellate Court shall have the
same powers as it has under rule 23.

Even before the insertion of new rule 23A, it was held an order of remand can be passed, if it is
necessary to do so in the interests of justice.5

C. POWER TO FRAME ISSUES AND REFER THEM FOR TRIAL

Rules 25 and 26 of Order 41 and section 107 (1) (c) deal with the power to frame issues and refer
them for trial of the appellate court.
3 Malayath Veetil Raman v. C. Krishnan Nambudripad, AIR 1922 Mad 505.
5
State of TN v. S. Kumaraswami, AIR 1977 SC 2026
Rule 25 states that where the Court from whose decree the appeal is preferred has omitted to
frame or try any issue, or to determine any question of fact, which appears to the Appellate Court
essential to the right decision of the suit upon the merits the Appellate Court may, if necessary,
frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred,
and in such case shall direct such Court to take the additional evidence required and such Court
shall proceed to try such issues, and shall return the evidence to the Appellate Court together
with its findings thereon and the reasons therefor within such time as may be fixed by the
Appellate Court or extended by it from time to time.

Rule 26 states that such evidence and findings shall form part of the record in the suit and either
party may file in the appellate court a memorandum of objections to any such finding of the
lower court within a time fixed by the appellate court. The appellate court should hear the whole
appeal and hearing should not be confined to the points on which the findings were called for.4

An order under this rule is not appealable. The main point of distinction between Rule 23 or 23A
and Rule 25 is whereas whole case goes to the lower court under Rule 23 or 23A, only certain
issues go to the lower in case of an order under rule 25.

D. POWER TO TAKE ADDITIONAL EVIDENCE

Rules 27-29 of Order 41 and Section 107 (1) (d) deal with the power of appellate court to take
additional evidence.

As a general rule, the appellate court shall decide an appeal on the evidence led by the parties
before the trial court and should not admit additional evidence for the purpose of disposal of an
appeal.5

4 Gogula Gurumurthy v. Kurimeti Ayyappa, AIR 1974 SC 1702

5 MC of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008.
8
Sumitra v. Maharaja, AIR 1963 HP 21
Sub rule (1) of Rule 27 states that the parties to an appeal shall not be entitled to produce
additional evidence, whether oral or documentary, in the Appellate Court.

The basic principle of admission of additional evidence is that:

• The person seeking the admission of additional evidence should be able to establish that with
the best efforts such additional evidence could not have been adduced at the first instance.

• The party affected by the admission of additional evidence should have an opportunity to rebut
such additional evidence.

• The additional evidence must be relevant for the determination of issue.

Rule 27 enumerates circumstances in which the appellate court may admit additional evidence,
whether oral or documentary, in appeal, which are as under:

i) Where the lower court has improperly refused to admit evidence which ought to have
been admitted, the appellate court may admit such evidence at the appellate stage.The
expression ought to have been means should be admitted in exercise of sound
discretion.8Refusal on account of late production cannot be said to be unjustified.

ii) Where the party seeking to produce additional evidence, establishes that
notwithstanding the exercise of due diligence, such evidence was not within his
knowledge or could not, after the exercise of due diligence, be produced by him at the
time when the decree appealed against was passed, the appellate court can admit such
evidence. Clause (aa) of sub Rule (1) of Rule 27 deals with this and was added by
Amendment Act of 1976.

iii) Where the appellate court itself requires additional evidence to enable it to pronounce
judgement or for any other substantial cause.6 The expression any substantial cause

6 O. 41 R. 27 (1) (b)
 should be liberally construed so as to advance substantial justice between the parties. 7
The true test is whether the appellate court is able to pronounce judgment on the
material before it without taking into consideration the additional evidence sought to
be adduced.The ability to pronounce judgment is to be understood as the ability to
pronounce a judgment satisfactory to the mind of the court delivering it. It does not
allow the appellate court to let in fresh evidence only for the purpose of pronouncing
judgment in a particular way.

Wherever the appellate court admits additional evidence, it should record reasons for doing
it.11PC said, “…the statement of reasons may inspire confidence and disarm objection.” Rule 28
deals with the mode of taking additional evidence and it states that wherever additional evidence
is allowed to be produced, the Appellate Court may either take such evidence or direct the Court
from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence
and to send it when taken to the Appellate Court.

Rule 29 deals with the points to be defined and recorded and it states that where additional
evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which
the evidence is to be confined and record on its proceedings the points so specified.

E. POWER TO MODIFY DECREE

Rule 33 of Order 41 states that the Appellate Court shall have power to pass any decree and
make any order which ought to have been passed or made and to pass or make such further or
other decree or order as the case may require, and this power may be exercised by the Court
notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of
all or any of the respondents or parties, although such respondents or parties may not have filed

any appeal or objection and may, where there have been decrees in cross-suits or where two or
more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although
an appeal may not have been filed against such decrees.

7 K. Venkataramaiah v. A. Seetharama Reddy, AIR 1963 SC 1526 11

O. 41 R. 27(2)
Its proviso then states that the Appellate Court shall not make any order under section 35A, in
pursuance of any objection on which the Court from whose decree the appeal is preferred has
omitted or refused to made such order. Section 35A deals with compensatory costs in respect of
false or vexatious claims or defences.

The underlying object of Rule 33 is to enable the appellate court to do full and complete justice
between the parties. This power is discretionary. But it should be properly exercised. The court
should not refuse to exercise it on mere technicalities. 8 The sweep of power under Rule 33 is
wide enough to determine any question not only between the appellant and the respondent but
also between the respondents and co-respondents. The court can pass any decree to meet the
ends of justice.

But the rule does not confer unrestricted right to reopen decrees which have become final merely
because the appellate court does not agree with the opinion of the trial court. Nor the appellate
court will interfere with finding of fact. Such power is to be exercised in exceptional cases when
its non-exercise will lead to difficulties in the adjustment of rights of the various parties.

F. OTHER POWERS

Section 107(2) of the Code enacts that over and above the aforesaid powers, an appellate court
has the same powers as an original court. This provision is based on the principle that appeal is
continuation of the suit and therefore, an appellate court can do, while the appeal is pending,
what the original court could have done while the suit is pending.9

DUTIES OF APPELLATE COURT

Along with its powers, the appellate court also has certain duties. These duties are listed as
follows:
8 Mahant Dhangir v. Madan Mohan, AIR 1988 SC 54
9 RS Lala Praduman v. Virendra Goyal, AIR 1969 SC 1349.
A. DUTY TO DECIDE APPEAL FINALLY

It is the duty of the appellate court to decide an appeal in accordance with law after considering
the evidence as a whole. The judgment of the appellate court must clearly show that it has
applied its mind to the evidence as a whole.

B. DUTY NOT TO INTERFERE WITH DECREE FOR TECHNICAL ERRORS

Section 99 of the Code enacts that a decree which is otherwise correct on merits and us within
the jurisdiction of the court should not be upset merely for technical and immaterial defects.

The underlying object of Section 99 is “to prevent technicalities from overcoming the ends of
justice and from operating as a means of circuitry of litigation.”10The Supreme Court has held,
“When a case had been tried by a Court on the merits and judgment rendered, it should not be
liable to be reversed purely on technical grounds, unless it had resulted in failure of justice.”

C. DUTY NOT TO REAPPRECIATE EVIDENCE UNLESS THERE IS MATERIAL

IRREGULARITY

An appeal is a continuation of a suit. Inasmuch as an appeal is a rehearing of the matter, the

appellate court can reappreciate entire evidence and can arrive at its own conclusion. However,
the appellate court will bear in mind a finding recorded by the trial court on oral evidence. It
should not forget that the trial court had the advantage and opportunity of watching the
demeanour of witnesses and hence, the trial court’s conclusions should not normally be
disturbed. No doubt, the appellate court has the same powers as the original court, but they have
to be exercised with proper

10 Kiran Singh v. Chaman Paswan, AIR 1954 SC 340.

care, caution and circumspection. When a finding of fact has been arrived at by the trial court by
mainly appreciating oral evidence, it should not be lightly disturbed unless the approach of the
trial court in appraisal of evidence is materially erroneous, contrary to well-established
principles.11

In TD Gopalan v. Hindu Religious and Charitable Endowments,16 it was held that, “We
apprehend that the uniform practice in the matter of appreciation of evidence has been that if the
trial court has given cogent and detailed reasons for not accepting the testimony of a witness the
appellate court in all fairness to it ought to deal with those reasons before proceeding to form a
contrary opinion about accepting the testimony which has been rejected by the trial court.”

In Radha Prasad v. Gajadhar Singh,17 it was held that, “The position in law, in our opinion, is
that when an appeal lies on facts it is the right and the duty of the Appeal Court to consider what
its decision on the question of facts should be; but in coming to its own decision it should bear in
mind that it is looking at the printed record and has not the opportunity of seeing the witnesses
and that it should not lightly reject the Trial Judge's conclusion that the evidence of a particular
witness should be believed or should not be believed particularly when such conclusion is based
on the observation of the demeanour of the witness in Court. But, this does not mean that merely
because an appeal court has not heard or seen the witness it will in no case reverse the findings
of a Trial Judge even on the question of credibility, if such question depends on a fair
consideration of matters on record.

When it appears to the Appeal Court that important considerations bearing on the question of
credibility have not been taken into account or properly weighed by the Trial Judge and such
considerations including the question of probability of the story given by the witnesses clearly
indicate that the view taken by the Trial Judge is wrong, the Appeal Court should have no
hesitation in reversing the findings of the Trial Judge on such questions. Where the question is
not of credibility based entirely on the demeanour of witnesses observed in Court but a question

11 C.K. Takwani, “Civil Procedure Code”, Eastern Book Company, Lucknow, Seventh edition, 2013, p. 525
16
AIR 1972 SC 1716.

AIR 1960 SC 115

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of inference of one fact from proved primary facts the Court of Appeal is in as good a position as
the

Trial Judge and is free to reverse the findings if it thinks that the inference made by the Trial
Judge is not justified.”

D. DUTY TO RECORD REASONS

Though an appellate court has power to dismiss an appeal summarily, such power should be
exercised sparingly and in exceptional circumstances and that too, after recording reasons.Rule
31 of Order 41 enjoins an appellate court to record reasons in support of its judgment. The
judgment must be self-contained with reasons in support of the findings arrived at by the court. It
must discuss the evidence in the light of points for determination and come to its own
conclusion.

In State of Punjab v. Jagdev Singh,18 the High Court allowed the petition of the detenu and set
aside an order of detention passed against him. The reasons in support of the judgment were not
recorded. The Supreme Court highlighting the importance of reasoned judgment held that,“We
would like to take this opportunity to point out that serious difficulties arise on account of the
practice increasingly adopted by the High Courts, of pronouncing the final order without a
reasoned judgment. It is desirable that the final order which the High Court intends to pass
should not be announced until a reasoned judgment is ready for pronouncement.

Suppose, for example, that a final order without a reasoned judgment is announced by the High
Court that a house shall be demolished, or that the custody of a child shall be handed over to one
parent as against the order, or that a person accused of a serious charge is acquitted, or that a
statute is unconstitutional or, as in the instant case, that a detent be released from detention. If the
object of passing such orders is to ensure speedy compliance with them, that object is more often
defeated by the aggrieved party filing a special leave petition in this Court against the order
passed by the High Court. That places this Court in a predicament because, without the benefit of
the reasoning of the High Court, it is difficult for this Court to allow the bare order to be
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implemented. The result inevitably is that the operation of the order passed by the High Court
has to be stayed pending delivery of the reasoned judgment.”

AIR 1984 SC 444

Highlighting the duty of Supreme Court to record reasons the court held, “It may be thought that
such orders are passed by this Court and therefore there is no reason why the High Courts should
not do the same. We would like to point out respectfully that the orders passed by this Court are
final and no appeal lies against them. The Supreme Court is the final Court in the hierarchy of
our courts. Besides, orders without a reasoned judgment are passed by this Court very rarely,
under exceptional circumstances. Orders passed by the High Court are subject to the appellate
jurisdiction of this Court under Article 136 of the Constitution and other provisions of the
concerned statutes. We thought it necessary to make these observations in order that a practice
which is not very desirable and which achieves no useful purpose may not grow out of its
present infancy.”

E. OTHER DUTIES

An appellate court should not dismiss an appeal in limine raising triable issues.108 Similarly,
when two cognate appeals are filed against the same judgment, both the appeals should be taken
up for hearing and decided together. Where an appeal on a similar question or point of law is
pending in a superior court, a subordinate court should not proceed to decide the point, but
should wait till the question is decided by the higher court.19

CONCLUSION
To conclude all these above mentioned points and findings are the powers and duties of the
appellate court which are endowed upon them for the paramount reason of meeting the interests

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of justice. It has been set in this way to make sure that an uncontrollable power is not given to
the higher courts which contrary to its original task of righting the wrongs of lower courts
actually helps undermines their authority. Though they have absolute discretionary power, this
power cannot be exercised without giving sufficient reasons.

DK Trivedi v. State of Gujarat, AIR 1986 SC 1323

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